Civil rights and cost analysis are poor bedfellows

UK politicians are pandering to the media and popular prejudice when they invoke a balance between liberty and security

By Ronald Dworkin / THE GUARDIAN , LONDON

This is a dangerous time for freedom in Britain. The country's most powerful politicians have joined its irresponsible press in a shameful attack on the idea of human rights. British Prime Minister Tony Blair says that the nation needs to re-examine what he calls the "philosophy" behind the Human Rights Act so as to change the balance it strikes between individual freedom and the community's security.

David Cameron, the Conservative Party leader, says a Tory government would reform that act or repeal it entirely. The rightwing press goes still further: the Telegraph calls for Britain to renounce the European Convention on Human Rights that Britain sponsored (it was signed in London) in 1950.

Botched prosecution

The cause of Blair's turning against human rights appears to be his government's embarrassment at having botched the prosecution of the Afghan hijackers and lost track of aliens released from jail.

But the two provisions he most wants to "balance" away will have a more pervasive impact: a ruling that forbids deporting aliens to countries where they are likely to be tortured and killed; and the provisions the House of Lords relied on in its 2005 Belmarsh decision condemning the government's policy of indefinite detention of suspected terrorists without trial.

People accused of crimes or terrorism may have rights, Blair says, including the right not to be imprisoned indefinitely without trial and the right not to be sent where they will be killed. But the British public has rights, too, and a new balance must be struck between the two sets of rights.

The balancing metaphor is dangerous because it suggests no principled basis for deciding how much torture we should facilitate, or for how many years we should jail people without trial. It leaves that decision up to politicians who want to pander to the tabloids.

The metaphor is deeply misleading because it assumes that we should decide which human rights to recognize through a kind of cost-benefit analysis, the way we might decide what speed limits to adopt. It suggests that the test should be the benefit to the British public, as Blair declared in his "Let's talk" speech, when he said that "the demands of the majority of the law-abiding community have to take precedence." This amazing statement undermines the whole point of recognizing human rights; it is tantamount to declaring that there are no such things.

Most political decisions require a cost-benefit balancing in which disadvantages to some are outweighed by the overall benefit to the community. Building a new airport is bound to disadvantage some people, but the damage is justified if it is the best choice for the nation. However, some injuries to individuals are so grave that they cannot be justified by declaring that that is what the public wants.

A civilized society recognizes rights precisely to protect individuals from these grave harms.

It might well be in the public interest to lock up people who the police think dangerous even though they have committed no crime, or to censor people whose opinions are offensive or unwelcome, or to torture people who we believe have information about impending crimes.

But we do not do that, at least in ordinary legal practice, because we insist that people have a right to a fair trial and free speech and not to be tortured. We insist on these rights even though the majority would be safer and more comfortable if we ignored them.